towery appeal

UNITED STATES COURT OF APPEALS for the NINTH CIRCUIT

Office of the Clerk

After Opening a Case – Counseled Cases(revised December 2013)

Court Address – San Francisco Headquarters

Mailing Address for U.S. Postal Service

Mailing Address forOvernight Delivery(FedEx, UPS, etc.)

Street Address

Office of the ClerkJames R. BrowningCourthouseU.S. Court of AppealsP.O. Box 193939San Francisco, CA94119-3939

Office of the ClerkJames R. BrowningCourthouseU.S. Court of Appeals95 Seventh StreetSan Francisco, CA94103-1526

95 Seventh StreetSan Francisco, CA 94103

Court Addresses – Divisional Courthouses

Pasadena Portland Seattle

Richard H. ChambersCourthouse125 South Grand AvenuePasadena, CA 91105

The Pioneer Courthouse700 SW 6th Ave, Ste 110Portland, OR 97204

William K. NakamuraCourthouse1010 Fifth AvenueSeattle, WA 98104

Court Website – www.ca9.uscourts.gov

The Court’s website contains the Court’s Rules and General Orders, informationabout electronic filing of documents, answers to frequently asked questions,directions to the courthouses, forms necessary to gain admission to the bar of theCourt, opinions and memoranda, recordings of oral arguments, links to practicemanuals, and an invitation to join our Pro Bono Program.

Case: 14-35598 07/16/2014 ID: 9172111 DktEntry: 1-1 Page: 1 of 9 (1 of 17)

http://www.ca9.uscourts.gov

Court Phone List

Main Phone Number. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-8000

Attorney Admissions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-7800

Calendar Unit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-8190

CJA Matters (Operations Unit) . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-7920

Docketing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-7840

Death Penalty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-8197

Electronic Filing – Appellate ECF.. . . . . . . . . . . . . . . . . . . . . . . . . Send email [email protected]

Library. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-8650

Mediation Unit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-7900

Motions Attorney Unit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-8020

Procedural Motions Unit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-7860

Records Unit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-7820

Divisional Court Offices:Pasadena.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (626) 229-7250Portland. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (503) 833-5300Seattle.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (206) 224-2200

Electronic Case Filing

The Ninth Circuit’s Appellate ECF (Electronic Case Files) system is mandatory forall attorneys filing in the Court, unless they are granted an exemption. Allnon-exempted attorneys who appear in an ongoing case are required to register forand to use the Appellate ECF system. Registration and information about ECF isavailable on the Court’s website at www.ca9.uscourts.gov under ElectronicFiling–ECF. Read the Circuit Rules, especially Ninth Circuit Rule 25-5, forguidance on Appellate ECF, including which documents can and cannot be filedelectronically.

After Opening a Case – Counseled Appeals


http://pacer.psc.uscourts.gov/announcements/general/ea_filer.html

http://www.ca9.uscourts.gov/cmecf/view.php?pk_id=0000000098#section-registration

http://www.ca9.uscourts.gov/rules/

Rules of Practice

The Federal Rules of Appellate Procedure (Fed. R. App. P.), the Ninth CircuitRules (9th Cir. R.) and the General Orders govern practice before this Court. Therules are available on the Court’s website at www.ca9.uscourts.gov under Rules.

Practice Resources

The Court has prepared a practice guide video entitled Perfecting Your Appeal. The video may be viewed for free on the Court’s website at www.ca9.uscourts.govunder FAQs, Forms and Instructions -> Guides and Legal Outlines, and may bepurchased through the Clerk’s office in San Francisco for $15.00. Continuinglegal education credit for viewing this videotape is available in most jurisdictions.

Admission to the Bar of the Ninth Circuit

All attorneys practicing before the Court must be admitted to the Bar of the NinthCircuit. Fed. R. App. P. 46(a); 9th Cir. R. 46-1.1 & 46-1.2.

To apply for admission, obtain an application on the Court’s website atwww.ca9.uscourts.gov under Forms or by calling (415) 355-7800. If you areregistered for the 9th Circuit's Appellate ECF system, upload your application andpay the $230.00 fee with a credit card by logging into Appellate ECF and clickingon Utilities > Attorney Admission. Otherwise, mail the application to the Clerk’sOffice in San Francisco with the admission fee of $230.00. Your check or moneyorder must be included with the application.

Notice of Change of Address

Counsel who are registered for Appellate ECF must update their personalinformation, including street addresses and/or email addresses, online at:https://pacer.psc.uscourts.gov/psco/cgi-bin/cmecf/ea-login.pl 9th Cir. R. 46-3.

Counsel who have been granted an exemption from using Appellate ECF must filea written change of address with the Court. 9th Cir. R. 46-3.






https://pacer.psc.uscourts.gov/psco/cgi-bin/cmecf/ea-login.pl%20

Motions Practice

Following are some of the basic points of motion practice, governed by Fed. R.App. P. 27 and 9th Cir. R. 27-1 through 27-13.

• Neither a notice of motion nor a proposed order is required. Fed. R. App. P.27(a)(2)(C)(ii), (iii).

• Motions may be supported by an affidavit or declaration. 28 U.S.C. § 1746.• Each motion should provide the position of the opposing party. Circuit

Advisory Committee Note to Rule 27-1(5); 9th Cir. R. 31-2.2(b)(6). • A response to a motion is due 10 days from the service of the motion. Fed. R.

App. P. 27(a)(3)(A). The reply is due 7 days from service of the response. Fed.R. App. P. 27(a)(4); Fed. R. App. P. 26(c).

• A response requesting affirmative relief and/or relief by a date certain mustinclude that request in the caption. Fed. R. App. P. 27(a)(3)(B).

• A motion filed after a case has been scheduled for oral argument, has beenargued, is under submission or has been decided by a panel, must include on theinitial page and/or cover the date of argument, submission or decision and, ifknown, the names of the judges on the panel. 9th Cir. R. 25-4.

Emergency or Urgent Motions

All emergency and urgent motions must conform with the provisions of 9th Cir. R.27-3. Note that a motion requesting procedural relief (e.g., an extension of time tofile a brief) is not the type of matter contemplated by 9th Cir. R. 27-3. CircuitAdvisory Committee Note to 27-3(3).

Prior to filing an emergency motion, the moving party must contact an attorney inthe Motions Unit in San Francisco at (415) 355-8020.

When it is absolutely necessary to notify the Court of an emergency outside ofstandard office hours, the moving party shall call (415) 355-8000. Keep in mindthat this line is for true emergencies that cannot wait until the next business day(e.g., an imminent execution or removal from the United States).

Briefing Schedule

The Court issues the briefing schedule at the time the appeal is docketed.



Certain motions (e.g., a motion for dismissal) automatically stay the briefingschedule. 9th Cir. R. 27-11.

The opening and answering brief due dates (and any other deadline set for adate certain by the Court) are not subject to the additional time described in Fed. R.App. P. 26(c). The early filing of appellant’s opening brief does not advance thedue date for appellee’s answering brief. 9th Cir. R. 31-2.1.

Extensions of Time to file a Brief

Streamlined RequestIf you have not yet asked for any extension of time to file the brief, you may requestone streamlined extension of up to 30 days from the brief’s existing due date. Submit your request via the Appellate ECF system using the “File a StreamlinedRequest to Extend Time to File Brief” event on or before your brief’s existing duedate. No form or written motion is required.

Written Extension Requests for extensions of more than 30 days will be granted only upon a writtenmotion supported by a showing of diligence and substantial need. This motionshall be filed at least 7 days before the due date for the brief. The motion shall beaccompanied by an affidavit or declaration that includes all of the informationlisted at 9th Cir. R. 31-2.2(b).

The Court will ordinarily adjust the schedule in response to an initial motion. Circuit Advisory Committee Note to Rule 31-2.2. The Court expects that the briefwill be filed within the requested period of time. Id.

Contents of Briefs

The required components of a brief are set out at Fed. R. App. P. 28 and 32, and9th Cir. R. 28-2, 32-1 and 32-2.

Excerpts of Record

The Court requires Excerpts of Record rather than an Appendix. 9th Cir. R. 30-1.1(a). Please review 9th Cir. R. 30-1.3 through 30-1.6 to see a list of the specificcontents and format. For Excerpts that exceed 75 pages, the first volume must



comply with 9th Cir. R. 30-1.6(a). Excerpts exceeding 300 pages must be filed inmultiple volumes. 9th Cir. R. 30-1.6(b).

Appellee may file supplemental Excerpts and appellant may file further Excerpts. 9th Cir. R. 30-1.7 and 30-1.8. If you are an appellee responding to a pro se briefthat did not come with Excerpts, then your Excerpts need only include the contentsset out at 9th Cir. R. 30-1.7. Excerpts must be submitted in PDF format on Appellate ECF on the same day thefiler submits the brief, unless the Excerpts contain sealed materials. If the Excerptscontain sealed materials, please electronically submit only the unsealed volumes. The filer shall serve a paper copy of the Excerpts on any party not registered forAppellate ECF.

After electronic submission, the Court will direct the filer to file 4separately-bound excerpts of record with white covers in paper copy.

Mediation Program

Mediation Questionnaires are required in all civil cases except cases in which theappellant is proceeding pro se, habeas cases (28 U.S.C. §§ 2241, 2254 and 2255)and petitions for writs (28 U.S.C. § 1651). 9th Cir. R. 3-4. They are not requiredin criminal cases.

The Mediation Questionnaire is available on the Court’s website atwww.ca9.uscourts.gov under Forms. The Mediation Questionnaire should be filedwithin 7 days of the docketing of a civil appeal. The Mediation Questionnaire isused only to assess settlement potential.

If you are interested in requesting a conference with a mediator, you may call theMediation Unit at (415) 355-7900, email [email protected] ormake a written request to the Chief Circuit Mediator. You may requestconferences confidentially. More information about the Court’s mediationprogram is available at http://www.ca9.uscourts.gov/mediation.



http://www.ca9.uscourts.gov.

http://www.ca9.uscourts.gov/mediation

Oral Hearings

Notices of the oral hearing calendars are distributed approximately 4 to 5 weeksbefore the hearing date.

The Court will change the date or location of an oral hearing only for good cause,and requests to continue a hearing filed within 14 days of the hearing will begranted only upon a showing of exceptional circumstances. 9th Cir. R. 34-2.

Oral hearing will be conducted in all cases unless all members of the panel agreethat the decisional process would not be significantly aided by oral argument. Fed.R. App. P. 34.



Ninth Circuit Appellate Lawyer RepresentativesAPPELLATE MENTORING PROGRAM

1. Purpose

The Appellate Mentoring Program is intended to provide mentoring on avoluntary basis to attorneys who are new to federal appellate practice or wouldbenefit from guidance at the appellate level. In addition to general assistanceregarding federal appellate practice, the project will provide special focus on twosubstantive areas of practice - immigration law and habeas corpus petitions. Mentors will be volunteers who have experience in immigration, habeas corpus,and/or appellate practice in general. The project is limited to counseled cases.

2. Coordination, recruitment of volunteer attorneys, disseminating informationabout the program, and requests for mentoring

Current or former Appellate Lawyer Representatives (ALRs) will serve ascoordinators for the Appellate Mentoring Program. The coordinators will recruitvolunteer attorneys with appellate expertise, particularly in the project's areas offocus, and will maintain a list of those volunteers. The coordinators will ask thevolunteer attorneys to describe their particular strengths in terms of mentoringexperience, substantive expertise, and appellate experience, and will maintain arecord of this information as well.

The Court will include information about the Appellate Mentoring Programin the case opening materials sent to counsel and will post information about it onthe Court's website. Where appropriate in specific cases, the Court may alsosuggest that counsel seek mentoring on a voluntary basis.

Counsel who desire mentoring should contact the court [email protected], and staff will notify the program coordinators. Thecoordinators will match the counsel seeking mentoring with a mentor, taking intoaccount the mentor's particular strengths.

3. The mentoring process

The extent of the mentor's guidance may vary depending on the nature of the case,the mentee's needs, and the mentor's availability. In general, the mentee shouldinitiate contact with the mentor, and the mentee and mentor should determine


mailto:[email protected]

together how best to proceed. For example, the areas of guidance may range frombasic questions about the mechanics of perfecting an appeal to more sophisticatedmatters such as effective research, how to access available resources, identificationof issues, strategy, appellate motion practice, and feedback on writing.

4. Responsibility/liability statement

The mentee is solely responsible for handling the appeal and any otheraspects of the client's case, including all decisions on whether to present an issue,how to present it in briefing and at oral argument, and how to counsel the client. By participating in the program, the mentee agrees that the mentor shall not beliable for any suggestions made. In all events, the mentee is deemed to waive andis estopped from asserting any claim for legal malpractice against the mentor.

The mentor's role is to provide guidance and feedback to the mentee. Thementor will not enter an appearance in the case and is not responsible for handlingthe case, including determining which issues to raise and how to present them andensuring that the client is notified of proceedings in the case and receivesappropriate counsel. The mentor accepts no professional liability for any advicegiven.

5. Confidentiality statement

The mentee alone will have contact with the client, and the mentee mustmaintain client confidences, as appropriate, with respect to non-public information.


UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

125 SOUTH GRAND AVENUE • PASADENA • CALIFORNIA 91105

ALEX KOZINSKIChief Judge

(626) 229-7140Fax: 229-7444

Dear Counsel:

I write to introduce you to the court’s mediation program.

The court offers you and your clients professional mediation services, at nocost, to help resolve disputes quickly and efficiently and to explore thedevelopment of more satisfactory results than can be achieved from continuedlitigation. Each year the mediators facilitate the resolution of hundreds of cases,from the most basic contract and tort actions to the most complex cases involvingmultiple parties, numerous pieces of litigation and important issues of publicpolicy.

The nine circuit mediators, all of whom work exclusively for the court, arehighly experienced attorneys from a variety of practices; all have extensive trainingand experience in negotiation, appellate mediation, and Ninth Circuit practice andprocedure. Although the mediators are court employees, they are well shieldedfrom the rest of the court’s operations. The court has adopted strict confidentialityrules and practices to ensure that what goes on in mediation stays in mediation. See Circuit Rule 33-1.

The first step in the mediation process is case selection. To assist themediators in the case selection process, appellants/petitioners must file a completedMediation Questionnaire within 7 days of the docketing of the case. See CircuitRules 3-4, and 15-2. Appellees may also fill out and file a questionnaire. Thequestionnaire with filing instructions accompanies this letter and is also availableat www.ca9.uscourts.gov/mediation/forms.php. All counsel are also invited tosubmit, by e-mail to [email protected], additional, confidentialinformation that might assist the mediator in the case selection process.

In most cases, the mediator will schedule a settlement assessmentconference, with counsel only, to determine whether the case is suitable formediation. Be assured that participation in the mediation program will not slowdown disposition of your appeal. Mediation discussions are not limited to theissues on appeal. The discussions can involve other cases and may include


http://www.ca9.uscourts.gov/datastore/uploads/rules/rules.htm#cr33-1



125 SOUTH GRAND AVENUE • PASADENA • CALIFORNIA 91105

Page Two

individuals who are not parties to the litigation, if doing so enables the parties toreach a global settlement.

Further information about the mediation program may be found on thecourt’s website: www.ca9.uscourts.gov/mediation. Please address questionsdirectly to the Mediation Program at 415-355-7900 [email protected].

Sincerely,

AAlex Kozinski


UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Circuit Mediation Office Phone (415) 355-7900 Fax (415) 355-8566

http://www.ca9.uscourts.gov/mediation

MEDIATION QUESTIONNAIREThe purpose of this questionnaire is to help the court’s mediators provide the best possible mediation service in this case; it serves no other function. Responses to this questionnaire are not confidential. Appellants/Petitioners must electronically file this document within 7 days of the docketing of the case. 9th Cir. R. 3-4 and 15-2. Appellees/Respondents may file the questionnaire, but are not required to do so.

9th Circuit Case Number(s):

District Court/Agency Case Number(s):

District Court/Agency Location:

Case Name: v.

If District Court, docket entry number(s) of order(s) appealed from:

Name of party/parties submitting this form:

Please briefly describe the dispute that gave rise to this lawsuit.

Briefly describe the result below and the main issues on appeal.

(Please continue to next page)


http://www.ca9.uscourts.gov/mediation/

Describe any proceedings remaining below or any related proceedings in other tribunals.

Provide any other thoughts you would like to bring to the attention of the mediator.

Any party may provide additional information in confidence directly to the Circuit Mediation Office at [email protected]. Please provide the case name and Ninth Circuit case number in your message. Additional information might include interest in including this case in the mediation program, the case’s settlement history, issues beyond the litigation that the parties might address in a settlement context, or future events that might affect the parties’ willingness or ability to mediate the case.

CERTIFICATION OF COUNSELI certify that:

a current service list with telephone and fax numbers and email addresses is attached (see 9th Circuit Rule 3-2).

I understand that failure to provide the Court with a completed form and service list may result in sanctions, including dismissal of the appeal.

Signature

("s/" plus attorney name may be used in lieu of a manual signature on electronically-filed documents.)

Counsel for

Note: Use of the Appellate ECF system is mandatory for all attorneys filing in this Court, unless they are granted an exemption from using the system. File this document electronically in Appellate ECF by choosing Forms/Notices/Disclosure > File a Mediation Questionnaire.


Molly C. Dwyer

Clerk of Court

Office of the Clerk

United States Court of Appeals for the Ninth Circuit Post Office Box 193939

San Francisco, California 94119-3939

415-355-8000

July 16, 2014

No.: 14-35598

D.C. No.: 3:10-cv-05018-RBL

Short Title: Julianne Panagacos, et al v. John Towery, et al

Dear Appellants/Counsel

A copy of your notice of appeal/petition has been received in the Clerk's office of

the United States Court of Appeals for the Ninth Circuit. The U.S. Court of

Appeals docket number shown above has been assigned to this case. You must

indicate this Court of Appeals docket number whenever you communicate with

this court regarding this case.

Please furnish this docket number immediately to the court reporter if you place an

order, or have placed an order, for portions of the trial transcripts. The court

reporter will need this docket number when communicating with this court.

The due dates for filing the parties' briefs and otherwise perfecting the appeal

have been set by the enclosed "Time Schedule Order," pursuant to applicable

FRAP rules. These dates can be extended only by court order. Failure of the

appellant to comply with the time schedule order will result in automatic

dismissal of the appeal. 9th Cir. R. 42-1.


UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

JUL 16 2014

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

JULIANNE PANAGACOS; JEFFREY

BERRYHILL; ANDREA ROBBINS;

BRENDAN DUNN; GLENN CRESPO;

JULIA GARFILED; CHRIS GRANDE,

Plaintiffs - Appellants,

v.

JOHN J TOWERY; THOMAS R

RUDD; CITY OF OLYMPIA; TOR

BJORNSTAD, individually and in his

Official Capacty as a Commander of the

OPD; PAUL LOWER, individually and

in his Official Capacty as a Detective of

the OPD; JEFF HERBIG, individually

and in his Official Capacty as a

Detective of the OPD; STEVE

NELSON, individually and in his

Official Capacty as a Detective of the

OPD; PAUL JOHNSON, individually

and in his Official Capacty as a Sergeant

of the OPD; JAMES COSTA,

individually and in his Official Capacty

as a Sergeant of the OPD; CATHIE

BUTLER, individually and in her

Official Capacty as the Communications

Director of the City of Olympia; STEVE

HALL, individually and in his Official

Capacty as the City Manager of the City

of Olympia; GARY MICHEL,

individually and in his Official Capacty

No. 14-35598

D.C. No. 3:10-cv-05018-RBL

U.S. District Court for Western

Washington, Tacoma

TIME SCHEDULE ORDER


as a Chief of the OPD; 1-500 DOES;

UNITED STATES ARMY; UNITED

STATES NAVY; UNITED STATES

AIR FORCE; UNITED STATES

COAST GUARD; CITY OF TACOMA;

GARY SMITH, individually and in his

capacity as a Lieutenant of the Tacoma

Police Department; MARK

FEDDERSON, individually and in his

capacity as a Lieutenant of the Tacoma

Police Department; PIERCE COUNTY;

CHRIS ADAMSON; WASHINGTON

STATE FUSION CENTER; JAMES

BARRETT; ALAN ROBERTS,

Defendants - Appellees.

The parties shall meet the following time schedule.

If there were reported hearings, the parties shall designate and, if necessary, cross-

designate the transcripts pursuant to 9th Cir. R. 10-3.1. If there were no reported

hearings, the transcript deadlines do not apply.

Wed., July 23, 2014 Mediation Questionnaire due. If your registration for

Appellate ECF is confirmed after this date, the

Mediation Questionnaire is due within one day of

receiving the email from PACER confirming your

registration.

Fri., August 15, 2014 Transcript shall be ordered.

Mon., September 15, 2014 Transcript shall be filed by court reporter.

Fri., October 24, 2014 Appellants' opening brief and excerpts of record

shall be served and filed pursuant to FRAP 32 and

9th Cir. R. 32-1.

Mon., November 24, 2014 Appellees' answering brief and excerpts of record

shall be served and filed pursuant to FRAP 32 and

9th Cir. R. 32-1.


The optional appellants' reply brief shall be filed and served within fourteen

days of service of the appellees' brief, pursuant to FRAP 32 and 9th Cir. R.

32-1.

Failure of the appellants to comply with the Time Schedule Order will result

in automatic dismissal of the appeal. See 9th Cir. R. 42-1.

FOR THE COURT:

Molly C. Dwyer

Clerk of Court

Kathy Morris

Deputy Clerk


towery appeal

Documents